Marijuana, Sodomy and the Blue Wall of Silence

Three NYPD officers were acquitted today in a case reminiscent of the sexual assault of Abner Louima, who was sodomized with a broomstick by an officer in a Brooklyn precinct station in 1997.

In October 2008, officers in Brooklyn saw Michael Mineo, a tattoo artist, light up a joint on the street. As they approached him, Mineo split. The cops chased him into a subway station where, as we often read in police reports, a "struggle ensued."

Mineo claimed that after he was cuffed, one of the three officers, Richard Kern, sodomized him with a baton. The cops hauled him over to a squad car but decided to cut him loose. Mineo believes he was released with a mere summons because the officers realized what they'd done -- and were attempting to buy his silence, even though he was wanted on an unrelated warrant.

The cops offered a different rationale for his release. More on that in a moment.

Not all suspects tell the truth. Then again, not all police reports are honest and accurate, not every word of testimony on the stand truthful. So what really happened?

I didn't read the police reports; didn't interview the suspected dope smoker, the arresting officers, or the witnesses; didn't conduct a criminal or an IA investigation; didn't sit through the trial. For the moment there's little help from the jury in the case: They slipped a handwritten note through court officers to the press, offering only a barebones "we found reasonable doubt" on Kern's alleged sexual assault, and on Officer Andrew Morales and Officer Alex Cruz's alleged cover-up.

So what really happened?

I don't know and, unless you were there neither do you. But juries are regularly called upon to make decisions -- freedom or incarceration, life or death -- based on accounts of incidents they did not observe. The officers claim they freed Mineo because marijuana possession is a low-priority collar.

Tell that to the 40,000 New Yorkers subjected to physical custody arrests, not merely a ticket, for simple marijuana possession in 2008, or to any of the 374,900 busted between 1998 and 2007 (83 percent of them black or Latino). Michael R. Bloomberg -- who when asked during his first mayoral campaign if he'd ever smoked pot, replied "You bet I did, and I enjoyed it"-- and his police department continue to place emphasis on physically arresting adults in possession of small quantities of pot, at the expense of other priorities. Check out Harry Levine and Deborah Small's report for a superb analysis of these disturbing statistics.

In light of these numbers it's hard to conceive of the officers in this case walking away from a pot bust, especially one in which the suspect behaved by running from them. I don't know too many cops who take kindly to people they have to chase, or fight. According to Kern, Mineo was "acting kind of crazy. At this point I thought he was emotionally disturbed."

So you just left him there?

Finally, there is the statement of a key witness in blue.

Kevin Maloney, a rookie assigned to transit duty, who "came forward because the investigation was focused on someone else, and it shouldn't be," may be faulted for not intervening at the scene, or for waiting several days before blowing the whistle, or for his less-than-inspired motive. But his statement on the stand was no less damning.

"I see Richard Kern has a metal retractable baton, known as the ASP [a tactical baton from Armament Systems and Procedures] out. I saw Officer Richard Kern have it placed on Michael Mineo's buttocks." He told the court that Kern then applied pressure and moved the baton "from left to right," that there was an "indentation in Michael Mineo's (boxers)," and that a half inch to an inch of the baton disappeared as it was jammed into "Mineo's butt crack."

"Penetration, however slight" was the language we learned at the police academy. If it happened as Maloney described it in court, Kern's actions were unambiguously a sexual assault, in this case an anal rape.

The standard of truth for a criminal trial is "beyond a reasonable doubt." For a civil proceeding it's a "preponderance of the evidence." Whatever the outcome of Mineo's pending multimillion dollar suit against NYPD, it's encouraging that the alleged crime was described by a witness who happens to work for that same PD.